THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
LAND DIVISION
CIVIL SUIT N0. 24 of 2013
MUYINGO
JOHN
PAUL……………………………………………………………….PLAINTIFFF
VERSUS
1. ABASI LUGEMWA
2. ASADU
LUGEMWA…………………………………………………………………..DEFENDANT
S
3. NAKUYA HADIJA
JUDGMENT
BEFORE HON. LADY JUSTICE EVA K. LUSWATA
The plaintiff brought this suit against the defendants jointly and severally for declaratory orders
that he is the rightful owner of a kibanja situate at Kazinga Bweyogerere, Kira Town Council in
the Wakiso District measuring 64ft by 24ft (hereinafter referred to as the suit land), a declaration
that the 1st defendant by his attempts to reposes the suit land, was in breach of contract, a
permanent injunction to guarantee the plaintiff’s peaceful occupation and quiet enjoyment of the
suit land, special damages for loss of land and bodily harm, exemplary damages for high
handiness, general damages and costs of the suit.
The brief facts of the case are that on the 7/8/08, the 1st defendant and the plaintiff executed an
unequivocal agreement in which the 1st defendant gave the plaintiff the suit land in consideration
of constructing for him a three bed roomed house on a plot adjacent to the suit land. The
agreement took effect on execution, whereupon the plaintiff at his expense, started constructing
two houses, one for the 1st defendant, and another on the suit land for himself.
The plaintiff
completed construction of both houses and both parties took effective occupation of their
respective houses, at the end of 2008.
The plaintiff furnished his house and connected the
necessary utilities of piped water and electricity. The two parties continued in their cordial
relationship until 2010 when the 1st defendant claimed ownership of both houses. The 1st
defendant then incited the other two defendants who together with him, interfered with the
plaintiff’s occupation, destroyed his property, and caused him and his family grievous harm and
eventually forced him out of the suit land and destroyed the house on it completely.
None of the three defendants filed written statements of defence despite having been served with
summons, and an interlocutory judgment was entered in favour of the plaintiff on 14/10/13. The
matter then proceeded exparte for formal proof on 10/3/15
The plaintiff proceeded by way of witness statements sworn by the plaintiff, (PW1), Mariam
Namugwanya (PWII) and Nantongo Zaitun (PWIII) and plaintiff’s counsel presented written
submissions which will be considered when making this judgment.
By inadventent omission, plaintiff’s counsel did not file any scheduling notes. However, he
proposed three issues which court using its powers under Order 15 r. 3 reframed to read as
follows:Issues:1. Whether there is a valid contract between the plaintiff and 1st defendant in respect of the
suit land, and if so, whether the 1st defendant is in breach of that contract.
2. Whether the plaintiff is the rightful owner of the suit land?
3. Whether the plaintiff is entitled to the remedies sought.
Because of their similarity, I will resolve issues, one and two concurrently.
However, before I can resolve the issues I need to point out that all three defendants chose not to
file written statements of defence and thereby left the plaintiff’s case unrebutted.
In such
circumstances, the provisions of Order 8 r. 3 CPR would apply and for clarity, I will reproduce
that provision;
“Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of the opposite party, shall be
taken to be admitted, except as against a person under disability; but the court may in
its discretion require any facts so admitted to be proved otherwise than by that
admission.”
However, this case is on formal proof and I choose to have the plaintiff prove his claim on the
facts and evidence, as relayed.
It was the evidence of PW1 that on 7/8/14, the plaintiff and 1st defendant executed an equivocal
agreement by which the 1st defendant agreed to give the plaintiff the suit land in consideration of
the latter constructing for him a three bed roomed house on an adjacent plot. The parties
executed a sale agreement that was admitted into evidence as Exhibit P1. Both PWII and PWIII
were witnesses to that agreement.
In exhibit P.1, the 1st defendant clearly stated that he was
giving part of his plot at Kazinga measuring 64ft by 24ft to the plaintiff and his wife Mariam
Namugwanya. He gave them the suit land while in good health and without force.
The agreement in issue was made in August 2008, and therefore came into force before the
Contracts Act, 2010. Thus although the definition of a contract given in Section 10 of that Act is
instructive, it would not apply to the present circumstances.
In my view, the contractual
relationship between the parties, if any, would be governed by the now defunct Contract Act Cap
73 which provided for the application of English contract Law in Uganda.
Traitel in his book – The Law of contract, 8th edition quoted in page 1 of Chitty on Contracts
– General Principles (Sweet and Maxwell) at page 263, described a contract to be an agreement
giving rise to obligations which are recognized by law. On the other hand, Pollock – Principles
of Contract, 13th Edition at page 1 defines a contract as “a promise or a set off promises which
the law will enforce.” What is important is that there must be evidence of two (or more parties)
with capacity to contract entering into a binding agreement. It is also a cardinal principle, that in
order to form a legally binding contract, both parties must have agreed to offer something of
value, or more specifically, consideration is a cardinal necessity of the formation of a contract.
See for example, Tweddle Vs Atkinson (1861) 121 ER 762 and Combe Vs Combe (1951) 2KB
215.
The subject of the agreement was the suit land which was well defined by size, location and
boundaries. In spite of the elaborate evidence by the plaintiff that the consideration from the
plaintiff was for him to build a house for the 1st defendant on an adjacent plot, this was not
reflected in the agreement. What is apparent is that the 1st defendant donated the land to the
plaintiff and PWII in return for the good relationship they enjoyed between them. There may
have been unrebutted evidence that the plaintiff built a house for the 1st defendant on an adjacent
pot to the suit land, but that could have been an oral agreement between them, the specifics of
which cannot be known and which could be quite pararel to the contents of Exhibit P.1. In any
case, the parole evidence rule demands that this court should concentrate on the terms of the
agreement that was executed between the parties and presented in evidence.
My understanding of the contract is that natural love and affection is presented as the mode of
consideration flowing between the parties. According to English contract law, love and affection
does not amount to valuable consideration in order to form a legally binding contract because,
common law only considered valuable consideration. See for example Bret Vs JS & Wife
(1600) Cro Eliz 756. Going by that authority therefore, the agreement would be void and
unenforceable.
The above notwithstanding, the plaintiff would still have remedy under equity in that there was a
definite intention of the 1st defendant to make a gift of the suit land to the plaintiff by way of
deed of gift.
Indeed the heading on the agreement is translated as follows:- “An agreement to give away part
of my Plot at Kazinga.”
Words and Phrases Legally Defined (2nd edition) at page 317 defines a deed of gift as
follows:“a gift at law or equity supposes some act to pass the property: In donations inter vivos
if the subject is capable of delivery, delivery of; if a chose in action, a release or
equivalent instrument; in either case, a transfer of the property is required”.
The court in Nolan Vs Nolan & Anor (2003) Vsc 121 held that a gift inter vivos is a gift
between two living people, meant to take effect during the life of the people who are party to the
transaction. Here consideration is not necessary. It was held further that delivery is the legal act
essential to complete the gift.
The above court further advised that the equitable doctrine of undue influence is always relevant
and a gift will be impeached for undue influence if in the eyes of equity, it is not an independent
expression of the donor’s free will. The same court also cautioned that the relationship between
the parties is also important. If the relationship is personal, then it is more likely to be a gift.
Closer to home, my brother Justice Wangutsi K.D. in Joy Mukobe Vs Willy Wambuwu (HCT
04 CV CA 0055/2005) gave essential conditions of a valid gift to include, (i) the absence of
consideration; (ii) the donor and the donee; (iii) the subject matter; (iv) transfer and acceptance.
In summary, the facts as presented show that there was no consideration at all. However, the gift
of the suit land was made with free will by the 1 st defendant as the donor and accepted on the
same terms by the plaintiff. According to the agreement, their relationship was one of close
friends, which makes the intention of a gift more likely. There was transfer and acceptance of
the gift because the plaintiff agreed to take the land, took possession and developed it. The 1st
defendant had the capacity to make the gift for it was stated by PWII, that she and the plaintiff
first made diligent inquiries including approaching the 2nd defendant, the owner of the mailo
interest, who confirmed owning that interest and having given away the suit land to the 1st
defendant. I would thus hold that the transaction between the plaintiff and 1st defendant was one
where the latter gave the former the suit land as a gift.
Having found that there subsisted between the parties a transaction of equated to a gift in law,
the plaintiff testified and provided evidence that he took possession of the suit land and
developed it with a house that he furnished and connected to utility grids of water and electricity.
Group Exhibit P.3 are photographs that include the plaintiff’s house (i.e. on the extreme left)
before it was demolished.
Exhibit P. 2 is utility bills and receipts in the names of the plaintiff
and PWII in respect of services at Kazinga, which was in the facts stated to be the location of the
suit land. This unrebutted evidence points to the fact that the plaintiff is the owner of the suit
land and at one time occupied it. In my view, his ownership begun the day he executed Exhibit
P.1 and continues to date. His ownership did not cease but was unlawfully interrupted by the 1st
defendant as this judgment will hereafter show.
It was the testimony of PW1 and PWII that the 1st defendant interfered with their ownership and
quiet occupation of the suit land. He begun by claiming that the suit land did not belong to them
and followed this up by an eviction letter. He then incited the other two defendants to indulge
into criminal acts that violated the plaintiff’s occupation. This included physical attacks upon
the plaintiff, PWII and their family and vandalizing their property. Eventually, they destroyed
the plaintiff’s house on the suit land completely. Photographs of the plaintiff’s house before and
after it was demolished as well as destroyed households that appeared to be strewn outside were
admitted in evidence as P.Exhibit 3 and P.Exhibit 5 respectively. Apart from the oral testimony,
the photographs depicted a picture of an eviction which was supported by PWIII who as a
neighbour took photographs of the destroyed property. Also photographs of the destroyed house
lent credibility to the fact that the plaintiff and his family were evicted.
The photographs were
invariably taken by the plaintiff and his witnesses and were not contested.
Also admitted as part of Exhibit P.3 are photographs stated to be taken by the plaintiff and PWII
depicting the plaintiff and PWII in different postures of agony with numerous injuries on their
upper bodies. Both claimed to have been injured by the defendants, which evidence was not
rebutted. In United Building Services Ltd Vs. Yates Muskrat T/A Quickset Builders & Co.
HCCS No. 154 of 2005 Justice Lameck Mukasa held that, a breach of contract occurs when
one or both parties fail to fulfill the obligations imposed by the terms of the contract. I also find
the definition given in Black’s Law Dictionary 8th Edition Page 200 as instructive.
“Violation of a contractual obligation by failing to perform one’s promise, by
repudiating it, or by interfering with another party’s performance.”
The evidence presented shows that the plaintiff took possession and him and his family was
housed on the suit land for some time. These were facts in full knowledge of the 1st defendant
who was stated to be a close friend of both the plaintiff and PII. Without a doubt, the acts of the
defendants amounted to interfering with the plaintiff’s performance of the contract by peaceful
enjoyment. Under such circumstances, I would have no other conclusion than to hold that the 1st
defendant was in breach of the contract between him and the plaintiff in respect of the suit land.
I thereby find issues one and two in favour of the plaintiff.
In his plaint the plaintiff sought different categories of damages, declaratory orders and costs
against all three defendants. I believe the declarations have been addressed and will now
consider the damages.
Counsel for the plaintiff submitted that since the plaintiff sought for alternative accommodation
at a monthly rate of 650,000/= from July 2012 to date (650,000 X 28 months = 18,200,000/=) the
plaintiff is entitled to this amount as well as the medical bills.
The law on special damages is that they must be strictly pleaded and proved.
See for example,
Eladam Enterprises Ltd Vs. S.G.S (U) Ltd & Ors Civil Appeal No. 20 of 2002. I am already
satisfied that the plaintiff and his family were unceremoniously evicted from the suit land. This
evidence came in the form of the testimony of all three plaintiff’s witnesses. Reasonably, he
had to find alternative accommodation. In my view, he not only pleaded but proved special
damages by adducing evidence of a tenancy agreement with one Namataka Justice which was
admitted in evidence as Exhibit P.4(a).
The rent receipts which were jointly admitted as
Exhibit P.4(b) showed that he paid a monthly rent of Shs. 650,000/= for the period 23/2/12 to
13/3/14.
He claims in his statement that the tenancy continues to date which is credible
testimony since his house has never been rebuilt.
However, it is not clear when the plaintiff fled from his house but what is clear is that the
defendants broke into the plaintiff’s house and destroyed his property in June 2012 and then
broke down the house on 6/11/12. I would deduce therefore that the plaintiff fled his house and
had to find alternative accommodation sometime in June 2012.
There is sufficient evidence
that he paid rent at alternative premises at a rate of Shs.650,000/= per month and thus a sum
representing 37 months is granted.
However the plaintiff did not provide or even prove the
medical bills he incurred as a result of his injuries, and these cannot be granted.
Exemplary damages
Counsel submitted that the plaintiff and his wife suffered severe injuries and loss of property as a
result of the violence meted out by the defendants and their agents who acted in a high handed
manner.
Lord Delvin in Rookes Vs Barnard [1964]1 ALL ER 367 gave an insight of instances when
exemplary damages can be awarded as follows:(i)
Where there has been oppressive, arbitrary or unconstitutional action by servants of
the government.
(ii)
Where the defendants conduct has been calculated by him to make a profit which
may well exceed the compensation payable to the plaintiff.
(iii)
Where some law for the time being in force authorizes the award of exemplary
damages
The second instance could apply to the present circumstances. However, in my view, exemplary
damages if granted would be payable by the 1st defendant who probably stood to benefit
financially if he regained the suit property arbitrarily. According to the above authority, it must
be shown that the defendant calculated that the money to be made out of his wrong doing will
probably exceed the damage at risk. That category is not confined to only money in the strict
sense, but could extend to cases where a defendant seeks to gain at the plaintiff’s expense some
object e.g. property which he covets and cannot obtain or obtain at a high price. Such damages
are not compensatory as such, but are meant to punish a wrong doer and deter him from
repeating such wrong doing.
The acts of the 1st defendant were indeed deplorable and arbitrary. However, the land in issue
was originally his property and when he sought to re-gain it, he destroyed all the developments
on it. Since no evidence of the value of the land or developments on it were put before me, I am
unable to confirm to a reasonable degree what exactly the 1st defendant stood to gain by his
actions. Also by destroying the plaintiff’s house, his calculated gains were thereby substantially
reduced.
Under such circumstances, I would be reluctant to grant the prayer for exemplary
damages, and that claim fails.
General damages
The plaintiff also prayed for general damages for trespass, inconvenience and damage to
property.
It is trite law that damages are the direct and probable consequence of the act complained of as
noted in the case of Kampala District Land Board & George Mitala Vs Venansio
Bamweyana Civil Appeal No. 2 of 2007. Such consequences may be loss of use, loss of profit,
physical inconvenience, mental distress, pain and suffering. Also see; Assist (U) Ltd Vs. Italian
Asphault & Haulage & Anor HCCS No. 1291 of 1999 at Pg 5.
In the instant case, a valid agreement subsisted between the two parties. The 1st defendant
wantonly breached that contract in a manner so aggressive and so inhumanly deplorable. He
then incited and also joined the other defendants into injuring the plaintiff and destroying his
house, causing him and his family to flee like outcasts.
Although the police examination
reports availed in evidence, were only admitted to the level of identification, the photographs and
witness statements depicted that the plaintiff and PWII suffered serious injuries and must have
feared for their dear lives.
by the 1st defendant.
PW1 claimed to have lost an ear and even been smeared with feaces
All this harm and misery was meted upon them by a friend the plaintiff
previously loved and trusted and none of the defendants ever bothered to put before this court
evidence countering their participation in that violence which led the plaintiff and his family to
loose and flee from his home.
According to the court in Livingstone Vs. Ronoyard’s Coal Co. (1880) 5 APP. Case 259 the
measure of damages was defined as, “that sum of money which will put the party who has been
injured, or who has suffered, in the same position as he would have been in if he had not
sustained the wrong for which he is now getting his compensation or reparation.” In the present
circumstances, I find difficulty in finding a sum that can atone for the plaintiff’s loss and restore
his original position as a family man of dignity and pride. However, taking a leaf from Haji
Asuman Mutekanga Vs. Equator Growers (U) Ltd SCCA No. 7 of 1995, I will employ the
opinion and judgment of a reasonable man, to make an award of 30,000,000/= as adequate
compensation in general damages of the 1st defendant’s breach and all antecedent actions by the
three defendants flowing from that breach.
The acts of the defendants were inhuman and
endangered the life of the plaintiff and his family. Their intention was to deprive the plaintiff of
his property, livelihood, land and a healthy family life which are all his constitutional rights.
They must be prevented from any acts that amount to interference with the plaintiff’s quiet
enjoyment of the suit land, and for that,
a permanent injunction is issued against the 1 st
defendant.
Before I take leave of this case, I need to point out the suit was filed against three defendants.
However, the 2nd and 3rd defendants could not be said to have been in breach of the contract
because they were in fact not privy to it. Therefore, because they were not in breach, an order
directing them to pay damages flowing from that breach would be an order premised on a wrong
principal of law. I thereby order that the special and general damages shall be met by the 1 st
defendant as an individual.
I hasten to add that, the violent acts of those defendants cannot be separated from the breach and
indeed, the evidence that they did not rebut, placed them at the centre of the plaintiff’s misery
and loss. At the very least, counsel for the plaintiff should have raised against them a tortuous
claim in assault and battery and even trespass, which he did not do. Under those circumstances,
I would regretfully have to dismiss the claim against the 2nd and 3rd defendants. However, since
both did not file defenses to the claim, such dismissal shall be without costs.
That notwithstanding, since the plaintiff has substantially succeeded on all three issues raised for
determination, he shall be entitled to costs as against the 1st defendant.
In summary, the suit against the 2nd and 3rd defendants is dismissed with no order as to costs. On
the other hand, judgment is entered in favour of the plaintiff against the 1st defendant only in the
following terms:(a) A declaration that a valid contract subsisted between the plaintiff and 1st defendant and
that the 1st defendant breached that contract.
(b) A declaration that the unregistered land situate at Kazinga Bweyogerere Kira Town
Council Wakiso District measuring 64ft by 24ft (suit land) is the property of the plaintiff.
(c) A permanent injunction is issued to restrain the 1st defendant his agents, assignees or
whosoever derives title from the 1st defendant from interfering with the plaintiff’s
peaceful occupation and quiet enjoyment of the suit land.
(d) Special damages in the sum of Shs.24,050,000/=
(e) General damages of Shs. 30,000,000/=.
(f) Costs of the suit.
(g) Interest at the rate of 8% on both categories of damages and the costs from the date of
judgment until payment in full.
I so order.
EVA K. LUSWATA
JUDGE
18/6/2015